United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge
2010, Patricio Paladin was convicted of conspiracy to
distribute cocaine, three counts of cocaine distribution, and
one count of possession with intent to distribute cocaine. He
was sentenced to a mandatory term of life in prison on the
conspiracy count based upon the quantity of cocaine at issue,
and the fact that this was Paladin’s third felony drug
conviction. He was sentenced to 300 months in prison on each
of the four other counts, all to run concurrently. Paladin
unsuccessfully appealed his conviction and sentence to the
First Circuit Court of Appeals, and then sought a writ of
certiorari, which the United States Supreme Court denied.
Here, Paladin, proceeding pro se, has brought a motion
pursuant to 28 U.S.C. § 2255 to vacate his sentence.
October 2010, Paladin was charged with a five-count
superseding indictment. CR Doc. No.
37. Count One charged Paladin with conspiracy
to distribute and possess with intent to distribute five or
more kilograms of cocaine. Counts Two and Three charged
cocaine distribution, but did not allege a specific drug
quantity. Count Four alleged distribution of cocaine in
excess of 500 grams, and Count Five charged possession with
intent to distribute cocaine in excess of 500 grams. Before
trial, the government filed a notice, pursuant to 21 U.S.C.
§ 851(a), announcing that Paladin was subject to an
enhanced sentence, including a mandatory term of life in
prison, because of his two previous felony drug convictions.
CR Doc. No. 30 (the § 851(a)(1) notice).
nonetheless proceeded to trial, where the jury found him
guilty on all five counts. The jury further concluded, in
response to special verdict questions, that the government
had proved beyond a reasonable doubt that Counts Four and
Five each involved more than 500 grams of cocaine. CR Doc.
No. 51. I subsequently sentenced Paladin. On Count
One, I imposed the mandatory sentence, pursuant to 21 U.S.C.
§ 841(b)(1)(A)(ii), of life in prison. On Counts Two
through Five, I sentenced Paladin to 300 months in prison on
each count, to run concurrently.
appealed his conviction and sentence to the First Circuit. On
appeal, he argued, among other things, that his sentence on
Count One was unconstitutional because “the indictment
did not reference his two prior felony convictions, and
because the jury was not required to find beyond a reasonable
doubt that he had been convicted of these crimes."
United States v. Paladin, 748 F.3d 438, 451 (1st Cir.
2014). Paladin also claimed that the jury instructions
as to Count One were improper because, he asserted, I did
“not submit to the jury the question of whether
Paladin was individually responsible for the charged quantity
of cocaine (five kilograms or more)." Id. at
452. The First Circuit rejected these and other arguments,
and affirmed. Id. at 454. Paladin then sought a writ
of certiorari, which the Supreme Court denied in November
2014. He filed his § 2255 motion in January
presses five arguments here. He contends that his life
sentence on Count One is unlawful because: (1) the indictment
did not mention his two prior felony drug convictions, and
the jury did not find that he had been convicted of those
crimes, (2) the indictment did not identify his previous
convictions as, he claims, 21 U.S.C. § 851(a)(2)
required, and (3) according to Paladin, the jury did not
find, beyond a reasonable doubt, that he was responsible for
the five or more kilograms of cocaine alleged in the
indictment. With respect to the other counts, Paladin
complains that (4) the jury did not find facts that increased
his advisory guideline sentencing range, and (5) according to
Paladin, the 300 month sentences imposed on Counts Two and
Three exceed the statutory maximum penalty for those charges.
Having carefully considered Paladin’s § 2255
motion and subsequent reply brief, I reject each argument in
Prior Convictions Not Found by Jury
first contends that his sentence on Count One is unlawful
because the indictment did not reference his two previous
felony drug convictions, and the jury did not find that he
had been convicted of those crimes. Paladin presented, and
the First Circuit rejected, this argument on direct review.
See Paladin, 748 F.3d at 451-52. I do the
that “expose a defendant to a punishment greater than
that otherwise legally prescribed [are] by definition
‘elements’ of a separate legal offense."
Apprendi v. New Jersey, 530 U.S. 466, 483 n.10
(2000). Those facts generally must be “alleged in the
indictment and found by the jury." Id. In
Almendarez-Torres v. United States, 523 U.S. 224, 227 (1998),
however, the Supreme Court “recognized a narrow
exception to this general rule for the fact of a prior
conviction." Alleyne v. United States, 133
S.Ct. 2151, 2160 n.1 (2013). Thus, “the fact of a prior
conviction need not be proven to a jury beyond a reasonable
doubt for sentencing purposes, even when it exposes a
defendant to a higher sentence." United States v.
Moon, 802 F.3d 135, 151-52 (1st Cir. 2015).
Supreme Court expressly declined to revisit Almendarez-Torres
in Alleyne v. United States, 133 S.Ct. at 2160
n.1, and, since Alleyne, the First Circuit has
repeatedly held that Almendarez-Torres remains good law.
See, e.g., Moon, 802 F.3d at 151-52;
United States v. Rodriguez, 759 F.3d 113, 122 (1st
Cir. 2014); Paladin, 748 F.3d at 451-52. Although
Paladin may disagree with those decisions, see CV
Doc. No. 9 at 14 (arguing that Almendarez-Torres
“has been eroded by the Supreme Court’s
subsequent Sixth Amendment jurisprudence"), they are
binding here. See United States v.
Jimenez-Banegas, 790 F.3d 253, 258-59 (1st Cir. 2015)
(applying Almendarez-Torres, and noting that “the
Supreme Court has clearly stated that we should not conclude
that its more recent cases have, by implication, overruled an
earlier precedent"). And, based upon these now
well-settled principles, Paladin’s argument -- that his
prior convictions should have been alleged in the indictment
and found by the jury -- fails. See
Paladin, 748 F.3d at 451-52.
Section 851(a)(2) Argument
also appears to contend that his sentence on Count One was
improper because, he claims, 21 U.S.C. § 851(a)(2)
required the government to list his prior felony drug
convictions in the indictment. See CV Doc. No.
3 at 55-57. As Paladin did not raise this argument
either at trial or on direct review, he has procedurally
defaulted on this claim. See Owens v. United
States, 483 F.3d 48, 56 (1st Cir. 2007). I may therefore
consider Paladin’s argument only if he can show both
cause for the default and actual prejudice. Id.
Paladin did not attempt to meet either requirement in his
motion, nor can he.
U.S.C. § 851 sets out “a multi-step procedure
[that must] be followed before an enhanced sentence [can be]
imposed based on prior felony drug convictions."
United States v. Dickerson, 514 F.3d 60, 64 (1st
Cir. 2008). Section 851(a)(1) requires the government to file
and serve an “information" before trial that lists
the defendant’s previous convictions. Id.
Section 851(a)(2) further provides that, “[a]n
information may not be filed under this section if the
increased punishment which may be imposed is imprisonment for
a term in excess of three years unless the person either
waived or was afforded prosecution by indictment for the
offense for which such increased punishment may be
imposed." In other words, except in cases where a
defendant waives the right, § 851(a)(2) generally
requires that “the federal drug crime at bar must be
prosecuted by indictment." United States v.
Harden, 37 F.3d 595, 601 (11th Cir. 1994).
the government indisputably (1) prosecuted Paladin by
indictment for the conspiracy alleged in Count One, and (2)
filed an information pursuant to § 851(a)(1) before
trial that included Paladin’s two prior felony drug
convictions. See CR Doc. Nos. 30; 37. Paladin
nonetheless asserts that the government failed to comply with
§ 851(a) because the indictment itself did not list his
prior convictions. I disagree.
851(a)(2)’s text does not support Paladin’s claim
that the indictment itself must include a defendant’s
prior convictions. Nor does Paladin provide any authority
that supports his interpretation of the statute, and I am
aware of none. Indeed, the Eleventh Circuit has concluded
“that § 851(a)(2) is not even arguably susceptible
to" the construction Paladin proposes. United States
v. McLean, 138 F.3d 1398, 1407 (11th Cir. 1998)
(rejecting the “suggestion . . . that we interpret the
subsection to require the prior conviction ...